The Nairobi Law Monthly just published my article on Kenya’s use of force in its crackdown on Al-Shabaab and efforts to secure the borders. I argue that the use of force in self-defense against Al-Shabaab, a non-state actor, does not have proper legal grounding under Article 51 of the Charter of the United Nations and indeed under customary international law. Nevertheless, if Kenya now has a proper legal basis in proceeding against the group, its use of force is still governed by international law. Such use of force must be necessary and proportionate.
On May 30, 2011, Pre-Trial Chamber II of the International Criminal Court (ICC) rejected the Kenyan Government’s admissibility challenges regarding the O’Campo Six: The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang and The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali. (See here)
The standard the court set required that the “‘national investigation must [. . .] cover the same conduct in respect of persons at the same level in the hierarchy being investigated by the ICC’”. Against this standard, Pre-Trial Chamber II determined that the applications do not provide concrete evidence of ongoing proceedings before national judges, against the same persons suspected of committing crimes falling under the ICC’s jurisdiction. While information was provided to establish that instructions were given to investigate, nothing in the record establishes any “current investigative steps” that have been taken. Pre-Trial Chamber II also considered that the Government of Kenya failed to provide the Chamber with any information as to the conduct, crimes or the incidents for which the suspects are being investigated or questioned. The Chamber concluded that “there remains a situation of inactivity and, consequently, that it cannot but determine that the case is admissible”.
The Government of Kenya may, within five days, file an appeal against these decisions, in accordance with article 82 (1)(a) of the Rome Statute and rule 154.1 of the Rules and Procedure and Evidence. It has already expressed its intention to do so.
On 20 April 2011, the ICC denied Luis Moreno-Ocampo’s effort to conceal evidence against the Ocampo Six until he had had enough time to study it. See instructive discussion here on the number of days Ocampo claimed were necessary. See also. On 31 March 2011, the Kenyan Government had filed an application to have the case ruled inadmissible in accordance with Article 19 of the ICC Statute. At this time, no determination has been made on that application. Moreno-Ocampo, therefore, argued that disclosure of evidence not be required until after final determination on the Article 19 application pursuant to the language of the same statute.
The Court disagreed. It noted that the statute only required the suspension of “investigations” by the prosecutor, not the “prosecution” itself. “The court rejected the application and ordered the prosecutor to disclose to the defence any evidence on which he intends to rely for the purposes of the confirmation of charges hearing,” Disclosure was, therefore, required in accordance with the rules of evidence. See ruling here.
The judge then set forth a schedule for disclosure:
- Evidence collected by the Prosecutor before 15 December 2010: Friday, 3 June 2011
- Evidence collected between 15 December 2010 and 31 March 2011: Friday, 24 June 2011.
- Evidence collected after the filing of the Admissibility Challenge: Friday, 29 July 2011
Any exculpatory evidence was ordered to be provided to the defense for inspection as soon as practicable.
As expected, Kenya’s bid to defer the two ICC cases at the Security Council failed following a meeting on Friday April 8, 2011. While the Security Council did not affirmatively reject the request, the impasse within the Council brought the discussion to an end. Council President Nestor Osorio of Colombia told reporters following closed-door consultations “After full consideration, the members of the Security Council did not agree on the matter.” See story here.
At least the Council met to consider this request, unlike the one that Sudan through the African Union sought with reference to President Bashir. The lack of engagement with Sudan’s deferral request is still an outstanding matter as noted in an expert African study (by Dapo Akande, Max Du Plessis and Charles Jalloh) on that question available here.
Analyzing the Merits of Kenya’s Inadmissibility Motion and Security Council to Consider Deferral on Friday April 8, 2011April 5, 2011
In a filing before the Pre-Trial Chamber II dated 31st March, 2011, Kenya argues that the two Kenyan cases are inadmissible. And in a unanimous decision today, the Pre-Trial Chamber ruled that the application on inadmissibility would not be heard during appearance of the O’Campo six in the Hague this week, (for confirmation of the charges), since although the Kenyan government is party to the Article 19 admissibility proceedings, it was not a party to the criminal proceedings against the six supects. (See story here) The Pre-Trial Chamber decided that the Prosecutor, the Defense and the Victims file responses to the government’s inadmissibility motion before April 28th at 4.00 p.m.
In the meantime, the Security Council has announced today that it will consider Kenya’s request for a deferral will be considered this month. (See story here) That announcement came after Colombia took over the Council’s rotating Presidency this month. Like the inadmissibility motion, the deferral request argues that the government is proceeding with its reform agenda so that a local tribunal can be put in place. The Security Council’s deferral discussions is scheduled for Friday April 8, 2011.
Now that the Pre-Trial Chamber has set the end of April for parties to file submissions on the inadmissibility motion, it will be clear by then what the decision of the Security Council will be when the inadmissibility motion comes up for hearing.
The primary argument of the government’s inadmissibility case is that it has not given up its right to investigate the O’Campo six. It argues that it plans to investigate post election violence offenders based on the following timetable pursuant to the ongoing and contentious implementation of a new Constitution:
- End of July 2011 – report on investigations under a new Deputy Public Prosecutor and how they extend up to the highest levels. (Note the application deadline for a new Prosecutor has just closed and once the Judicial Service Commission makes its decision, the President will then make the appointment. End of July 2011 is an ambitious date to expect a report from a newly appointed Deputy Public Prosecutor under these circumstances)
- End of August 2011 – report on progress made with investigations to the highest levels, and on adoption of three Police Bills and reorganization of the Police Services, including the appointment of the new Inspector General. (Again end of August 2011 is ambitious since the Bills mentioned are not ready. Further, the government’s case hangs on the theory that it needs time to implement these important changes. Yet, nothing in the inadmissibility motion filed specifically mentions any of the O’Campo six. More damning is the fact that the 2008 post election violence was the fourth major post election violence cycle with respect to which no credible investigations or prosecutions of those most responsible has/was undertaken. It is merely theoretical that two of the leading contenders for the Presidency in 2012 (Kenyatta and Ruto) will simply become subject to an investigation under President Kibaki’s government which has effectively given its imprimatur to Kenyatta and Ruto as its preferred successors).
- End of September 2011 – report on progress made with investigations and readiness for trials in light of judicial reforms. (Again, this is a theoretical possibility which presumes a deeply divided government will have enacted a credible domestic tribunal to conduct such trials).
The government’s inadmissibility case is built on conjecture and speculation – in fact a wish list of the reform agenda. If this reform agenda is followed without the usual start-stop style of the heavily divided coalition government, it will need to be financed. The Minister for Finance is Uhuru Kenyatta, one of the O’Campo six. Going by his reluctance to finance the Committee of Experts which oversaw the birth of the new Constitution and recent suspect appropriations to shore up the defense of the O’Campo six at the Hague, there is little to hope for that these new Constitutional offices will be funded to be able to effectively conduct their roles independently and without being manipulated to serve the succession politics that has already reached feverish proportions (precipitated by the Hague process and the O’Campo six) in the country.
Anyone watching Kenyan politics knows that while a large proportion of the public still supports the Hague trials (see story here ) there huge emotional rallies that took place in some parts of the country as the O’Campo six prepared to leave for the Hague. (see for example wife of founding President Mzee Jomo Kenyatta blessing his son Uhuru and his new found political ally Ruto)
The Kibaki side of the coalition government is doing everything it can to convince the Kenyan public about the inappropriateness and inadmissibility of the trials, while Prime Minister Raila’s side has done just the opposite – a factor that does not augur well for the government’s argument on both inadmissibility and deferral.
With regard to Kenya’s inadmissibility argument, as I have noted in a previous post the Appeals Chamber in The Prosecutor v Germain Katanga and Mathieu Chui in a Judgment on Appeal Against the Oral Decision of Trial Chamber II of 12 June 2008 on Admissibility of the Case held that under “Article 17(1)(a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability.” Para. 78
The motion filed by Kenya simply asserts that “it has managed to put in place necessary reforms to investigate and try all cases at whatever level arising from the post-election violence,” para. 8. That does not sound like there is an ongoing investigation. Further, the government acknowledges that there is no domestic tribunal yet (even while asserting its willingness to do so) and making the rather untrue assertion that the ICC process is not allowing “Kenya to finish the task and to investigate and try those at all levels, particularly those at the top of political, military and administrative hierarchies, who merit being tried,” id. at Para. 10. Thus while the application makes a whole lot of the need to respect the sovereignty and integrity of national criminal justice systems and that there is no evidence that Kenya is shielding anyone or engaged in an unjustified delay, there is simply nothing to show an investigations or proceedings are underway (or that all these reforms are not really being undertaken as smokescreen to shield those most responsible from the Hague).
The motion seeks additional time and accommodation to ensure that there is ‘reconciliation, trust and cooperation’ within the coalition government so that it can effectively undertake the reforms necessary to set up credible investigation and prosecution authorities – much like other countries that have experienced similar turmoil like Kenya and which the Prosecutor’s Office has given generous timeframes to undertake investigations and prosecutions. Colombia is mentioned as one such country – see in particular Paras. 18 and 40. Incidentally the country currently chairing the Security Council this month and which has decided to have Kenya’s deferral motion discussed).
In the final analysis, while the reforms underway in Kenya are unlikely to have yielded the kind of dividends that meet the test laid down in the Appeals Chamber in The Prosecutor v Germain Katanga and Mathieu Chui. This is particularly unlikely by September 2011. September 2011 is too short a time frame for these reforms to have gained the kind traction necessary to undertake investigations against some of the most powerful currently serving politicians in the country. The Hague process has already triggered the high stakes 2012 Presidential race into high gear – not the kind of political climate for national trials against some of the leading contenders for high office in Kenya. Even bracketing out the political farce surrounding the Kibaki succession in 2012, there are too many other uncertainties about the execution of the reform agenda – not least of which is that one of the O’Campo suspects holds the purse strings to its successful implementation.
In the best case scenario, one could argue Kenya should be given the benefit of the doubt – Kenya does really intend to implement all these reforms. Such a good faith case may in fact exist – but it is simply that, a theoretical possibility, a wish-list and a good one at that. There is also the reality on the ground and that does not measure up very well in favor of inadmissibility.
Today April 1st 2010, Judge Ekaterina Trendafilova rejected the Prosecutor’s Interlocutory Appeal from the March 8, 2011 decision declining to issue summonses with respect to allegations of crimes against humanity that occurred in Kisumu town, Kibera in Nairobi, Naivasha and Nakuru during post election violence in early 2008.
Judge Trendafilova found that the Prosecutor failed “to plead that the conduct of the Police [shootings etc] was part of a State policy.” Further the Judge found that the Prosecutor had failed to provide “reasonable grounds to attribute these events to the suspects” and as such the Chamber could not have proceeded to analyze those events to establish if they qualified as crimes against humanity under the Rome Statute. Para. 13.
Judge Trendafilova noted that simply because Muthaura, (Head of Civil service) Kenyatta (cabinet minister) and/or Ali (Commissioner of Police) were State agents was insufficient under the Statute to charge them “with establishing, participating in or contributing to a policy,” since they “can only be charged with the crimes committed in the context of a widespread and systematic attack against the civilian population carried out pursuant to or in furtherance of a State or organizational policy” Para 18. The Judge emphasized that knowledge on the part of the person charged that s/he was ‘part of a widespread or systematic attack against a civilian population in furtherance of a State or organizational policy’ was what was important – not that the policy pursuant to which the attack was carried out was attributable to such a person. Id.
The Judge rejected the Prosecutor’s argument that the Pre-Trial Chamber was effectively acquiescing to impunity by failing to reinstate those charges. The Judge noted that the Kenyatta, Ali and Muthaura had already been issued summonses with reference to commission of crimes in Naivasha and Nakuru for “using their authority over the Kenyan Police and thus by virtue of their position with the State apparatus” as well as with regard to systematic attacks “carried out pursuant to the organizational policy of the Mungiki,” at Para. 19.
The Judge further dismissed the Prosecutor’s argument that his discretion had been undermined and the fairness of the trial impugned by the Chamber’s re-characterization of acts of forcible circumcision as ‘inhuman acts’ rather than as ‘other forms of sexual violence.” The Judge observed that with ‘sufficient evidence to meet the evidentiary standard as required by article 61(7) of the Statute,” it was still open for the Prosecutor to bring the charges as he would have wanted.
The Prosecutor has lost this initial skirmish. This appeal and its dismissal clearly delineate some of the major legal issues that the defense is likely to raise with regard to related charges once confirmed by the Pre-Trial Chamber in the next week particularly in this case involving suspects who were officials in the Kenyan government. So whereas in the other Kenyan case, issues involving non-state actors loom large, here the Judge strongly suggested that the Pre-Trial Chamber is uncomfortable with concluding that the mere involvement of State actors in crimes against humanity necessarily means that there was a State policy.
For the ruling see here.
As Libya Takes Center-Stage at the Security Council, Kenya’s Scheduled Discussion Falters and Notes on Judge Kaul’s Dissent & Non-State ActorsMarch 18, 2011
Prior to passing a resolution authorizing the use of force against Libya with unprecedented speed on March 17, 2011, the Security Council had on the previous day removed from its schedule and postponed indefinitely a consultation on Kenya’s deferral bid with no explanation. See story here.
Libya which was one of Kenya’s biggest backers in its deferral bid now faces the Security Council’s harshest measures – the collective use of force to protect Libyan citizens from their government pursuant to the Council’s authority under Chapter VII of the UN Charter. See story here.
In the meantime, the Chinese Ambassador to Kenya has continued to reiterate China’s support for Kenya’s deferral bid. See story here.
The split within the Kenyan government about whether to seek deferral or not continues. Prime Minister Raila Odinga and members of the Orange Democratic Movement allied to him continue to support the ICC proceeding with the two cases while President Kibaki’s wing of the government continues to seek deferral. President Kibaki has promised to challenge the admissibility and jurisdiction of the ICC. Conflicting letters have been sent to both the ICC and the Security Council by both sides of the government, a scenario that makes it hard to demonstrate Kenya’s seriousness in its deferral bid. See here.
Three more updates on O’Campo before looking briefly as Judge Kaul’s dissent: First, he has appealed against Trial Chamber II’s dismissal of some of the charges he had included in his application for summonses. See appeal here.
Second, he is seeking one of the suspects, Francis Muthaura to stop chairing a top national security committee, (National Advisory Security Committee) so that he cannot interfere with witnesses or evidence collection. See story here.
Third, the dates for the appearance of the two sets of suspects are now April 7th for Case 1 and April 8th for Case 2. See story here.
Finally, Judge Kaul’s dissenting opinion in O’Campo’s application for summonses has finally been released. You can see it here.
The crux of Judge Kaul’s case is that crimes against humanity require an ‘organizational policy’ that approximates that of a State. In his view, non-state actors cannot be considered approximations of a state for purposes of crimes against humanity unless they have certain characteristics:
Those characteristics eventually turn the private ‘organization’ into an entity which may act like a State or has quasi-State abilities. These characteristics could involve the following: (a) a collectivity of persons; (b) which was established and acts for a common purpose; (c) over a prolonged period of time; (d) which is under responsible command or adopted a certain degree of hierarchical structure, including, as a minimum, some kind of policy level; (e) with the capacity to impose the policy on its members and to sanction them; and (f) which has the capacity and means available to attack any civilian population on a large scale.
non-state actors which…are not able to carry out a policy of this nature, such as groups of organized crime, a mob, groups of (armed) civilians or criminal gangs..would generally fall outside the scope of article 7(2)(a) of the Statute. To give a concrete example, violence-prone groups of persons formed on an ad hoc basis, randomly, spontaneously, for a passing occasion, with fluctuating membership and without a structure and level to set up a policy are not within the ambit of the Statute, even if they engage in numerous serious and organized crimes. Further elements are needed for a private entity to reach the level of an ‘organization’ within the meaning of article 7 of the Statute. For it is not the cruelty or mass victimization that turns a crime into a delictum iuris gentium but the constitutive contextual elements in which the act is embedded.
Judge Kaul’s dissent raises important definitional issues that will have to be dealt with as these Kenyan cases commence shortly.
The Kenyan government in a statement signed by the Attorney General, the Minister of Justice and Constitutional Affairs, and the Minister in Charge of Internal Security has announced plans to challenge the admissibility of the case against six Kenyans when they appear in the Hague on April 7th, 2011. See government statement here.
Notably, Pre-Trial Chamber II in issuing the summons on March 8, 2011 declined to rule on the admissibility of the two Kenyan cases as noted in a previous post.
Under article 17 (1) (a) and (b) of the Rome Statute, the question of unwillingness or inability has to be considered only (1) when there are, at the time of the proceedings in respect of an admissibility challenge, domestic investigations or prosecutions that could render the case inadmissible before the Court, or (2) when there have been such investigations and the State having jurisdiction has decided not to prosecute the person concerned.
Thus Kenya will have to show that it has not engaged in inaction but is instead investigating or prosecuting the six Kenyans. If Kenya cannot demonstrate it is investigating or prosecuting the six Kenyans, then the case is admissible before the ICC.
At the moment, there are no domestic proceedings in Kenya against the six with reference with regard to the various counts of crimes against humanity now pending at the ICC. Perhaps Kenya can argue that there are ongoing investigations but no public information exists at this time about this very unlikely possibility. Thus Kenya cannot at this point demonstrate that these important preconditions for a possible finding of inadmissibility under current ICC jurisprudence.
The Appeals Chamber in The Prosecutor v Germain Katanga and Mathieu Chui in a Judgment on Appeal Against the Oral Decision of Trial Chamber II of 12 June 2008 on Admissibility of the Case held that under “Article 17(1)(a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability.” Para. 78
It seems to me that Kenya not having set up a domestic tribunal to investigate and prosecute the six Kenyans is only currently making a theoretical argument about its willingness and ability to investigate and prosecute. Such theoretical willingness and ability is likely to result in inaction and that is precisely why the two cases against the six Kenyans is admissible. The case that the government is in the process of reforming the judiciary and criminal justice system as required by the terms of the new Constitution is only tangentially connected to the investigation and prosecution of post-election violence offenders in general and to the six Kenyans against whom summonses have been issued against in particular. The facts as they exist now do not render the two cases inadmissible to the extent Kenya cannot show ongoing investigations or prosecutions against any of the six Kenyans that the Prosecutor has prevailed in procuring summonses.
The admissibility challenge is a new front in the government’s bid not to have the ICC proceed with the prosecutions of five current or former senior government officials: William Ruto currently suspended from the cabinet; Uhuru Kenyatta a Deputy Prime Minister; Francis Muthaura, who heads the Civil Service; Henry Kosgey currently suspended from the cabinet; Hussein Ali, the Post Master General and a former Commissioner of Police and radio broadcaster Joshua Arap Sang. See story here.
Five of the six suspects have announced their willingness to appear at the Hague on April 7th. Only Francis Muthaura has not yet publicly announced his intention to appear since the issuance of the summonses.
In the meantime, Vice President Kalonzo Musyoka has embarked on the second phase of the lobbying campaign to seek deferral of the ICC cases. This week he is meeting members of the United Nations Security Council in New York. Other members of the lobbying campaign announced last week by President Kibaki are headed to various capitals around the world to lobby the other members of the Security Council. See stories here and here .
In two rulings dated March 8, 2011, the Pre-Trial Chamber II has issued its ruling allowing issuance of Summonses to Appear for six Kenyans in two cases sought by ICC Chief Prosecutor Moreno O’Campo.
Pursuant to these two rulings, these six Kenyans will now receive summonses from the Court pursuant to Article 58(7) of the Rome Statute.
Both decisions were decided by a majority of two of the three judges. Judge Kaul who dissented in the initial ruling granting the Prosecutor permission to commence an investigation is scheduled to ‘issue a dissenting opinion in due course.” Judges Ekaterina Trendafilova and Cuno Tarfusser wrote the two rulings. In both cases, the Chamber declined to rule on admissibility reserving that to a different phase of the proceedings.
The only issue that the Chamber confined itself to deciding is whether there were reasonable grounds to believe that one or more of the crimes
On admissibility, the Chamber noted with reference to the first case that the Prosecutor had presented information suggesting that were reasonable grounds to believe that Counts 1,2 and 4 of the Application had been committed in the first case against William Ruto, Henry Kosgei and Joshua Arap Sang.
In this case, the Prosecutor had alleged that the three person had committed the following offences:
- Count 1: murder constituting a crime against humanity (Article 7(1)(a) and Article 25(3)(a) or (d) of the Statute);
- Count 2: Deportation or forcible transfer of population constituting a crime against humanity (Article 7(1)(d) and Article 25(3)(a) or (d) of the Statute);
- Count 3: Torture constituting a crime against humanity (Article 7(1)(f) and Article 25(3)(a) or (d) of the Statute; and
- Count 4: Persecution as a crime against humanity (Article 7(1)(h) and Article 25(3)(a) or (d) of the Statute).
Quite notably, in this case the Chamber observed that it was “satisfied that there are reasonable grounds to believe that the attack against the civilian population was committed pursuant to an organizational policy” in various parts of the Rift Valley (Para 20) and that a network of perpetrators including the suspects ‘possessed the means to carry out a widespread or systematic attack against the civilian population” (Para 24). Ultimately the Chamber found that the “contextual elements for crimes against humanity alleged by the Prosecutor’s Application have been satisfied,” (Para. 29)
However, the Chamber was skeptical that the Prosecutor had presented sufficient material to establish reasonable grounds to believe that acts of torture as a crime against humanity were committed (Para. 33)
In addition, the Chamber found it had “no reasonable grounds to believe that Sang (the radio-broadcaster) is criminally responsible as a principle… with Ruto and Kosgey for…crimes against humanity.” (Para. 38). For Sang, the Chamber noted that it is satisfied on the material before it that “there are reasonable grounds to believe that his role is best characterized under Article 25(3)(d) of the Statute.” (indirect co-perpetrator) (Para 38 and Para. 53).
The Chamber noted that on the basis of the material presented, there were reasonable grounds to believe that William Ruto as ‘the most representative Kalenjin leader and head of the organization established –together with Kosgey was responsible for the overall plan and its implementation in the Rift Valley; and that the plan constituted creating perpetrators; purchasing guns and crude weapons; giving instructions to perpetrators to support implementation of the plan – including killing, displacement of people and destruction of property. (Para 42). The Chamber noted that on the information it had Kosgey was equally culpable and that he “was in charge of managing the financial resources of the organization for the purpose of implementing the common plan.” (Para 43).
In the second case involving Francis Muthaura, Uhuru Kenyatta and Mohammed Hussein Ali, the Chamber allowed summonses to issue against all three for all five counts for crimes against humanity as alleged by the Prosecutor (albeit with limitations as the localities where the crimes were allegedly committed).
The five counts in this case are:
- Count 1: murder constituting a crime against humanity (Article 7(1)(a) and Article 25(3)(a) or (d) of the Statute);
- Count 2: Deportation or forcible transfer of population constituting a crime against humanity (Article 7(1)(d) and Article 25(3)(a) or (d) of the Statute);
- Count 3: Rape and other forms of sexual violence constituting a crime against humanity (Articles 7(1)(g) and 25(3)(a) or (d) of the Statute
- Count 4: Other inhumane acts constituting a crime against humanity (Article 7(1)(k) and Article 25(3)(a) or (d) of the Statute; and
- Count 5: Persecution as a crime against humanity (Article 7(1)(h) and Article 25(3)(a) or (d) of the Statute.
Notably, the Chamber found that on the basis of the material presented to it, the Mungiki criminal organization operated as ‘a large and complex hierarchical structure featuring various levels of command and a clear division of duties in the command structure…[with] a trained military wing” and that it qualified as an organization under Article 7(2)(a) of the Statute. (Para. 22). Kenyatta and Muthaura, were according to the Chamber on the basis of the material presented to it, in a common plan with Mungiki to commit the alleged crimes for the ‘purpose of keeping PNU [President Kibaki’s party] in power and in return Mungiki would be free from government repression and Mungiki interests would receive government protection. (Para 37). Further, the Chamber noted that the material presented to it showed both Kenyatta and Muthaura had control over Mungiki, that they financed Mungiki and that Mungiki members almost automatically complied with Kenyatta’s orders. (Paras 40-41). With regard to Ali, the Chamber noted that the material before it indicated he had acted on the instructions of Muthaura to order the Kenya Police not to respond to the crimes being committed by Mungiki. (Para 49).
Since the Prosecutor had not alleged that the absence of police intervention in the violence showed the existence of a State policy by abstention, the Chamber did not entertain the issue without prejudice to revisiting it in future based on further submissions. (Para. 24).
The Chamber did not agree with the Prosecutor that ‘other forms of sexual violence’ in Article 7(1)(g) of the Statute contemplates acts of forcible circumcision. (Para. 27).
With respect to both cases, the Court found that the issuance of arrest warrants is unnecessary since none of the persons against whom summonses were ordered to be issued were flight risks and there was nothing that currently indicated they would evade personal service of the summons or refrain from cooperating if summoned to appear.
This is an unprecedented victory for O’Campo for a number of reasons. First, with the exception of one count in case no. 1, the Chamber sustained all the other counts against all the six Kenyans. The only downside is that O’Campo has yet to convince Judge Kaul who dissented in the application to investigate and who is now expected to issue a dissent on the issuance of summonses. This is an important case as it represents the first time the Prosecutor has successfully made an application to investigate a situation and then successfully made an application for summonses.
Second, Kenya presents an unprecedented opportunity for the Court and the Prosecutor to demonstrate the scope of the ICC’s authority over a situation in a country not in turmoil unlike other situations like the Democratic Republic of Congo, Sudan or even northern Uganda. As O’Campo has argued, a major reason for taking this case up is to prevent recurrence of post-election violence in 2012 in Kenya and any time thereafter. As a result of the successful application to investigate the Kenyan situation, there is already an effort to have the Prosecutor investigate 90 killings of anti-government (red shirts) protestors in Thailand following the Kenyan precedent even though Thailand is a party to the Rome Statute. On that see here and here.
Third, the issuance of the summonses against the six Kenyans continues to fortify the case that Kenya has not shown the slightest indication of seriousness to try these six Kenyans, or any others for that matter, for the offences committed in early 2008. By ordering summonses be issued, the Chamber may have effectively shut the door to Kenya’s deferral bid – if there was ever any doubt that the deferral bid was meritless.
In First Real Test Constitution Prevails as Kibaki Reverses Unilateral Appointments: Implications for Kenya’s Deferral BidFebruary 22, 2011
In what is the first real test of Kenya’s new Constitution, the President has backed down by withdrawing nominees appointed inconsistently with the Constitution to fill four significant public positions: Chief Justice, Attorney General, Deputy Public Prosecutor and Controller of the Budget. See story here and here.
The Constitutional Implementation Commission, the Judicial Service Commission, the Speaker of the National Assembly and the High Court had already declared the nominations inconsistent with the requirements of the new Constitution. (See below for excerpts of the High Court ruling outlining the provisions of the Constitution at issue).
A suit filed by a women’s rights group challenging the constitutionality of the nominations for failing to give equal protection to women in the nominations as required by Article 37(3) of the Constitution is still pending. See story on that case here and here.
Another suit filed in the Court of Appeal by the Constitutional Implementation Commission to give a definitive interpretation of the nominating and appointing process and requirements for Constitutional Office holders is also pending is unlikely to be withdrawn since the President insists he appointed the four officers within his powers. See story here.
President Kibaki, who had initially declared that he will fight to the end to keep the nominees, withdrew the nominations arguing that it will enable Kenya to “move forward with the implementation process of the Constitution.”
This withdrawal of the nominations is the first indication that the President may very well be re-considering his strategy of outflanking the Prime Minister with respect to the new Constitution’s mandate to consult with the Prime Minister and to work with other organs in the implementation of the new Constitution. Second, the withdrawal of the nominations presents a new opening for Kenya to begin to show credibility in reforming the judiciary and possibly setting up a credible local tribunal to try post election offenders.
In a ruling on whether the list of nominees was admissible in the National Assembly, the Speaker ruled the list of nominees was inadmissible because it was unconstitutional. Noted the speaker:
[H]aving paid due regard to the positions advanced by the High Court and other constitutional and statutory bodies, I find and rule that the constitutional requirements of section 24 (2) and 29 (2) of the Sixth Schedule to the Constitution requiring consultation subject to the National Accord and Reconciliation Act are not met if the National Assembly receives a list of nominees to constitutional offices, on which there is open and express disagreement between His Excellency, the President and the Prime Minister. Such is not the nomination contemplated by the National Accord and Reconciliation Act, which is part of the Constitution. It is unconstitutional and the unconstitutionality cannot be cured by any act of this House or of its Committees nor by a vote on a Motion in the House. Further, and I so find, no Motion on such a nomination, whatever its terms and whatever the contents of the Report upon which the Motion is based, is admissible and I therefore hereby so order.
Enormous pressure had been piled on the President by civil society groups, the Prime Minister and Kenya’s foreign envoys among others. See story here.
In his statement withdrawing the nominations, the President argued that the Judicial Service Commission would now proceed with the nominations as required by the Constitution. This was the proper interpretation of the nominating and appointing process for constitutional office holders such as the Chief Justice, Attorney General and the Deputy Public Prosecutor that the High Court, the Judicial Service Commission, the Speaker of the National Assembly and the Commission on Implementation of the Constitution had already spelled out in opposing Kibaki’s unilateral appointments.
This withdrawal of Kibaki’s unilateral appointments is a victory for the checks and balances established in the new Constitution that subjects the President’s appointing authority of judicial officials not only to consultation with the Prime Minister, but also the Judicial Service Commission which has representation outside the government. Further, such nominations have to be approved by Parliament. Thus by withdrawing those nominees, the President effectively conceded the new Constitution’s consultative process had not been followed. It is notable that the current Attorney General Amos Wako who has otherwise been regarded as a lackey of the President (and is remembered for his maiden speech in Parliament declaring ‘no man save the President is above the law’) has repeatedly sided with those critical of the President’s nominations both in High Court proceedings as well as a member of the Judicial Service Commission. Perhaps with Wako’s days numbered as Attorney General, he is beginning to get some muscle!
To get a fuller picture of the constitutional issues at stake in this controversy, here are some excerpts from the High Court ruling ordering the President to hold off the appointments until their constitutionality was established. The case is Centre For Rights Education And Awareness (Creaw) & 7 others v Attorney General  eKLR (decision of 3rd February, 2011):
What are the major violations of the Constitution complained of by the petitioners?
(i) That the nomination of the Chief Justice was unconstitutional… Miss Mbiyu on behalf of the Attorney General conceded that the President ought to have received recommendations from the Judicial Service Commission before he made the aforesaid nomination. It is in the public domain that the Attorney General, who is a member of the Judicial Service Commission, signed a joint statement of the Commission to that effect. That was done just about four days ago…On the basis of the concession made by the Attorney General, who is the respondent in this petition, it must be accepted that the said nomination did not comply with the constitutional requirements of Article 166(1) (a) as read together with Section 24(2) of Schedule Six of the Constitution. To that extent, the petitioners have proved that the nomination was unconstitutional. The rule of harmony in interpreting the Constitution as earlier stated has to be borne in mind.
The second issue relating to the constitutionality of the nomination to the office of the Chief Justice is whether it was done after consultation between the President and the Prime Minister in accordance with the National Accord and Reconciliation Act… there was no consensus or agreement between the two principals, which I must state, is not a requirement under the provisions of Section 24(2) of Schedule Six of the Constitution. That notwithstanding, the values and principles stated under Article 10 and the spirit of the National Accord and Reconciliation Act ought to have been borne in mind in making the nominations.
(ii) Violation of Article 27(3) regarding equal treatment of men and women.
To the extent that all the nominees to the offices of the Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget were all men, the spirit of equality and freedom from discrimination was not given due consideration…. While it may be argued that in future appointments to public offices women were likely to be included as submitted by Mr. Kihara, no reasonable explanation was given by the respondent why none of the four appointees was a woman.
In view of the violations to the letter and spirit of the Constitution as shown hereinabove, even without considering other relevant provisions of the Constitution, like Article 10, which spells out national values and principles of governance, I am satisfied that the petitioners have demonstrated that they have a prima facie case with a likelihood of success.